Jackson v. Deutsche Bank Trust Company, as Trustee for Securitized Trust Novastar Mortgage Funding Trust 2007-1 et al

Filing 29

MEMORANDUM AND ORDER. It is hereby ORDERED that on or before December 20, 2013, Plaintiff must provide the Court with all pages of the following documents: (1) the Consent Order ; (2) the May 17, 2013, letter; (3)the Payment Agreement referred to in the May 17th letter; (4) all May 3, 2013, correspondence referenced in the May 17th letter; and (5) all documentation regarding payments received by Plaintiff pursuant to the ConsentOrder. It is further ORDERED that on or before January 6, 2014, Def endants must file a supplemental reply brief responding to the documents provided by Plaintiff. Defendants must address the following issues: (1) the relationship between the parties to the Consent Order and the parties to this suit; (2) the effect, if any, of the Consent Order on pending or concluded litigation regarding foreclosure proceedings that were subject to the Order; and, (3) the effect, if any, of the Consent Order on Plaintiffs loan, on Plaintiffs 2010 suit and the suit at bar, and/o r on foreclosure proceedings initiated by Defendants on the property in suit. Defendants also may brief other related issues as deemed necessary. It is further ORDERED that on or before January 13, 2014, Plaintiff may file a sur-reply brief responding to the points in Defendants supplemental reply brief. (Signed by Judge Nancy F. Atlas) Parties notified.(gkelner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
QUASI L. JACKSON,
Plaintiff,
v.
NOVASTAR MORTGAGE, INC.;
et al.,
Defendants.

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CIVIL ACTION NO. H-13-1196

MEMORANDUM AND ORDER
Plaintiff Quasi L. Jackson brought this foreclosure case against Defendants
Deutsche Bank Trust Company, as Trustee for Securitized Trust Novastar Mortgage
Funding Trust 2007-1; Mortgage Electronic Registration Systems, Inc. (“MERS”);
Novastar Mortgage, Inc.; and Novastar Mortgage Funding Corp. (collectively,
“Defendants”). Plaintiff brought this suit in the 152d Judicial District Court of Harris
County, Texas, and Defendants removed the case to this Court on April 26, 2013.
The Court currently is considering whether Plaintiff’s claims are barred by res
judicata because of a previous lawsuit filed by Plaintiff in 2010.1 Under the doctrine

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Defendants have filed dispositive motions that raise the issues of res judicata.
Specifically, Deutsche Bank and MERS have filed a Motion for Judgment on the
Pleadings [Doc. # 18], to which Plaintiff responded [Doc. # 22] and these Defendants
replied [Doc. # 27]. Defendants Novastar Mortgage, Inc., and Novastar Mortgage
Funding Corp. also have filed a Motion for Judgment on the Pleadings [Doc. # 23],
to which Plaintiff has responded [Doc. # 25].

of res judicata, or claim preclusion, “a final judgment on the merits bars further claims
by parties or their privies based on the same cause of action.” U.S. v. Davenport, 484
F.3d 321, 326 (5th Cir. 2007) (quoting Montana v. United States, 440 U.S. 147, 153
(1979)). “The bar prevents relitigation of all ‘issues that were or could have been
raised in [the previous] action.’” Id. (quoting Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 398 (1981)). For claim preclusion to apply, “the following four-part
test must be satisfied: (1) the parties must be either identical or in privity; (2) the
judgment in the prior action must have been rendered by a court of competent
jurisdiction; (3) the prior action must have been concluded to a final judgment on the
merits; and (4) the same claim or cause of action must have been involved in both
actions.” Id. (internal quotations, citations, and alterations omitted).
In 2010, Plaintiff brought suit against Deutsche Bank in the 113th Judicial
District Court of Harris County, Texas, challenging Deutsche Bank’s attempts to
foreclose on his real property. The property, Note, and Deed of Trust at issue in the
2010 lawsuit are the same as those forming the basis of the case at bar. On August 26,
2011, the state court granted Deutsche Bank’s motion for summary judgment in its
entirety and dismissed Plaintiff’s claims with prejudice. That judgment is final.
In the current suit, Plaintiff has responded to Defendants’ motions by, inter alia,

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attaching several documents,2 including a Consent Order from the Board of Governors
of the Federal Reserve System captioned In the Matter of Morgan Stanley, New York,
New York. The filed copy of this document is incomplete. Only eleven pages of the
Consent Order are included and the page showing the Order’s date is not provided.
Plaintiff also attaches a letter dated May 17, 2013, apparently related to the Consent
Order, which letter states that Plaintiff received payments in the amount of $1,300 due
to “deficient mortgage servicing and foreclosure processes.” Plaintiff provides the
Court with only the first page of the May 17th letter. The May 17th letter refers to a
“Payment Agreement,” a May 3, 2013, letter, and a previous payment to Plaintiff, but
none of these documents have been provided by Plaintiff to the Court.
Although Defendants Deutsche Bank and MERS filed a reply [Doc. # 27] to
Plaintiff’s response, the reply does not address the Consent Order, the payments to
Plaintiff, or any of the Morgan Stanley matters. On the current record, the Court is
unable to ascertain the relevance of these documents, if any, to Plaintiff’s claims in
this suit and/or the preclusive effect of Plaintiff’s 2010 suit. The Court also is unable
to determine from the incomplete copy of the Consent Order whether it addresses or
otherwise has any effect on the foreclosure litigation relevant to this suit.
Therefore it is hereby
ORDERED that on or before December 20, 2013, Plaintiff must provide the
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See attachments to Docs. # 22, # 25.
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Court with all pages of the following documents: (1) the Consent Order ; (2) the May
17, 2013, letter; (3) the “Payment Agreement” referred to in the May 17th letter; (4)
all May 3, 2013, correspondence referenced in the May 17th letter; and (5) all
documentation regarding payments received by Plaintiff pursuant to the Consent
Order. It is further
ORDERED that on or before January 6, 2014, Defendants must file a
supplemental reply brief responding to the documents provided by Plaintiff.
Defendants must address the following issues: (1) the relationship between the parties
to the Consent Order and the parties to this suit; (2) the effect, if any, of the Consent
Order on pending or concluded litigation regarding foreclosure proceedings that were
subject to the Order; and, (3) the effect, if any, of the Consent Order on Plaintiff’s
loan, on Plaintiff’s 2010 suit and the suit at bar, and/or on foreclosure proceedings
initiated by Defendants on the property in suit. Defendants also may brief other
related issues as deemed necessary. It is further
ORDERED that on or before January 13, 2014, Plaintiff may file a sur-reply
brief responding to the points in Defendants’ supplemental reply brief.
SIGNED at Houston, Texas, this 12th day of December, 2013.

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